Gleanings from the mind of a Christian Leader and Lawyer

Ottawa is facing a flag flap. The National March for Life flag was raised at city hall in the morning on May 11, 2017 and taken down in the afternoon. As Canada’s capital city you can easily imagine that Ottawa hosts a number of local, provincial, national and international events. Many are accompanied by the symbolic raising of a flag at city hall. That flag pole has become something of a symbol for free speech.

For the twentieth year in a row thousands of Canadians filled the lawn and sidewalks of Parliament Hill, the seat of our democracy. The past few years, police have erected barricades on Parliament Hill and along the march route. Not to control pro-life participants but to protect them from opponents who in recent years have engaged in hateful, and harmful, displays such as throwing condoms and other items at marchers, spitting on marchers and other acts designed to provoke a negative response.

Canada’s absent legal protection for children prior to birth is an issue of much conversation but little action from the majority of Canadian politicians. The limited action of today’s political environment includes Prime Minister Justin Trudeau’s edict that those who support protection for children before birth are unwelcome in the political party he leads, and the written demand from several Ottawa city councillors that the flag be taken down. In the process, the Prime Minister and councillors mistakenly assert a “right” to abortion as their rationale.

The matter of unregulated availability of publicly funded abortion in Canada is the result of a Supreme Court of Canada decision made in 1988, and the subsequent failure of Parliament to follow the court’s direction to enact suitably constitutional legislation for the protection of children prior to birth.

At issue in the Morgentaler case was a section of the Criminal Code that became law in 1969. Section 251 maintained abortion as illegal in Canada, providing exception only for instances of medically therapeutic reasons. The exception to the continuing general prohibition required the abortions to be performed in a hospital following review and approval of the health reasons by a committee of three doctors.

The Prime Minister of the day was the current Prime Minister’s father. In regard to the new law Pierre Trudeau stated,

You know, at some point you are killing life in the foetus in self-defence – of what? Of the mother’s health or her happiness or of her social rights or her privilege as a human being? I think she should have to answer for it and explain. Now, whether it should be to three doctors or one doctor or to a priest or a bishop or to her mother-in-law is a question you might want to argue …. You do have a right over your own body – it is your body. But the foetus is not your body; it’s someone else’s body. And if you kill it, you’ll have to explain. (Montreal Star, May 25, 1972)

In 1988, the Supreme Court of Canada found that the requirements to first meet with a therapeutic abortion committee and then have the medical procedure performed in a hospital posed a risk to life for women who might qualify for a legal abortion but would experience delays because of their distance from a hospital with a therapeutic abortion committee.

In speaking to law school students on this case, I conduct a brief show of hands quiz on whether they have been taught in first year constitutional law that there is a right to abortion and whether they have actually read the Morgentaler 1988 decision for themselves. The majority typically say yes to the former and no to the latter.

I encourage those law students, you, and Mr. Trudeau, to read the decision. It’s available online. Don’t worry about whether you will understand the legalese. Instead, make three columns on a piece of paper. In the first column write the names of the seven judges who decided the case. In the second column put a check mark beside the name of each judge who decided there is a constitutional right to abortion. In the third column put a check mark beside the name of each judge who decided it is the jurisdiction of Parliament to make a law prohibiting or restricting abortion. You’ll end up with seven check marks in the third column and none in the second (unless you place one beside Justice Wilson based on a disputed statement; and still, you’ll put a check beside her name in column 3). The Supreme Court Justices even offer their opinions on what a constitutionally acceptable abortion law would look like.

The court was unanimous that Parliament has a constitutional interest in the child before birth. In fact, shortly after the decision, a legislative attempt to replace the section struck down in Morgentaler passed the House of Commons, passed two votes in the Senate and then died because of a tie on the final vote. Several Senators were absent for the third vote, and the Speaker of the Senate determined that on a tie vote it was his responsibility to declare that the proposed legislation had not passed and therefore he voted against it.

Since that time Canada has remained without legal protection for the “someone else’s body” identified in the statement made by Prime Minister Pierre Trudeau. Distinctly, the only democracy in the world that fails to offer protection even to the medically viable pre-born child.

The March for Life, like similar protests on Parliament Hill, demonstrates that there are Canadians who desire Parliament take political action on an unsettled question, one that is literally a matter of life and death.

The only right at issue in raising and lowering the flag at city hall is the constitutional right to freedom of expression, free speech on whether Parliament will exercise its recognized constitutional authority in the life of yet-to-be-born citizens by providing protection of the law or continue to withhold that protection.

It was not my expectation to find myself again writing about Justin Trudeau and his interaction with the law, but he continues to misinterpret, misstate and misapply basic legal principles about which a political leader should be aware. And if not personally aware, should get some advice.

In a May article for C2C Journal, I addressed Trudeau’s invention and public declaration of a non-existent right to abortion under Canada’s Charter of Rights and Freedoms. Trudeau called an impromptu press conference to announce he was imposing on potential candidates for the Liberal Party his personal opinion that the Supreme Court of Canada had found a Charter right to abortion in its 1988 decision in R. v. Morgentaler. In order to run for the Liberal Party of Canada, candidates would have to agree with his position that there are no legal limits on abortion, and not challenge that position.

Restricting the voting privileges of members on matters of conscience may be his prerogative as leader of his party, but it effectively eliminates as candidates everyone who has actually read the Charter of Rights and Freedoms or the Supreme Court’s decision in R. v. Morgentaler. Although one of the seven justices who heard the case suggested there ought to be some form of right to abortion at some stage in a pregnancy, all seven acknowledged that the Charter provided no such right; and, that acting on behalf of Canadian society as a whole, Parliament had in interest in the foetal child which it could choose to declare. The myth of a Charter right does not create a Charter right.

Last week Trudeau held another hastily called press conference to announce that he had expelled two Members of Parliament from his caucus because allegations of misconduct had been made against them by MPs from another party.

Trudeau’s father famously said of MPs, “When they are 50 yards from Parliament Hill, they are no longer honourable members, they are just nobodies,” but the media have made sure the names of these two married men with families were shared nation-wide. Of course, the media attention was the purpose of calling a press conference.

Yes, allegations of misconduct – and the media has reported it as sexual misconduct, identifying the complainants as two female MPs of the New Democratic Party – need to be taken seriously. However, such allegations also require a measure of procedural fairness take place before verdict and sentence are pronounced. It’s a proud and important part of our legal history as a free and democratic society; a cornerstone of the rule of law.

Procedural fairness is not a complex process. First, a complaint is made, with the complainant prepared to have his or her identity made known. The complainant’s identity must be made known to at least a select group of people – although not necessarily the general public – including the person being accused, whoever is charged with the responsibilities of investigation and gathering evidence, and whoever bears responsibility for adjudication. Adjudication is a process which includes providing the accused with opportunity to respond to the complaint, including knowing who the complainant is and all details of the allegations being made, before the decision maker assesses the testimony/evidence and makes a decision.

There are a few knowledgeable and well respected lawyers in the Liberal caucus – and no doubt the Party has others on retainer – who would be more than competent giving advice on due process if asked.

Media reports indicate that Parliament has a confidential process that will now be followed in response to these allegations. However, Trudeau has jumped ahead of that process in announcing his verdict. He also has jumped ahead of the complainants’ reported desires that this matter be kept private, without consulting the complainants or providing procedural fairness to the expelled MPs. And, just as he did with his declaration on abortion, he has surprised members of his caucus by going directly to the media to effectively announce how little he knows about the law.

Trudeau grew up in the home of a Prime Minister. He is 42 years old, has been a Member of Parliament for six years, and leader of his party for nearly two. He should know that taking action based on popular myths about what women might want – whether a “right” to abortion or pre-emptive punishment for alleged misconduct – is not the same as taking proper action.

In his defense, Justin Trudeau’s not a lawyer. Maybe he should talk to one.

I attended the Maternal, Newborn and Child Health (MNCH) Summit, “Saving Every Woman, Every Child: Within Reach,” last week in Toronto. I thought I was informed on this issue. At the end of day 1 – a day called Delivering Results for Mothers and Children – I realized I knew about 15% of what I heard and saw that day. Conclusion: Immunization and Nutrition are easy to identify, costly to research, and inexpensive to deliver.

By the end of day 2 – Doing More Together Globally – I was completely amazed at how the United Nations, national governments, for-profit corporations and non-governmental organizations had come together in various forms of partnerships for the express purpose of helping pregnant women who want to have their children born, born healthy and stay healthy while staying alive and healthy themselves to do so.

I attended the Innovative Financing breakout session and saw a remarkable, simple product that will save untold numbers of lives. It was initiated by a mechanic who had a dream and convinced Canadian government officials to accept the premise of his drawings and provide $50,000 to support working with the financial and medical communities to develop a business plan and a prototype. That $50,000 was leveraged into millions and will ultimately result in a cost of about $5 per life saved – both mothers and children. The device will likely also be used in Canadian and American hospitals because of the ease and safety of its use in the birthing process.

Melinda Gates of the Bill and Melinda Gates Foundation noted among the reasons she and her husband put their money into the MNCH initiative was the recognition and treatment of all lives as having equal value and “when you make the right investments you unlock the potential of millions of people.” She noted that results to date are a 47% decline in infant mortality and maternal mortality rates are down by 250,000 per year. Mrs. Gates concluded by noting that every dollar that is being invested in this initiative is showing a $9 return economically. Keeping mothers alive to care for their children and children alive to become adults is key to the economic success of the developing world.

Day 3 – Real Action for Women and Children’s Health – was proactively kicked off the afternoon before by Prime Minister Stephen Harper’s announcement of an additional $3.5 billion to continue the initiative from 2015 to 2020. When Canada announced in 2010 it was adding $1.1 billion to the existing $1.75 billion in funding for maternal and child health that $2.85 billion was leveraged into a G7/G8 commitment of $7.3 billion, much of which became foundational for partnership funding with the private sector and NGOs. The financing format that has been developed since 2010 indicates that $3.5 billion could easily be leveraged into $12 to $15 billion dollars; and a transition of the economic structure of dozens of countries – through saving the lives of women and children.

The Secretary-General of the United Nations and the President of the World Bank Group came to Toronto to share that the success of the MCNH initiative is changing the way the world does development work because it is extremely effective. The most common words heard from government, business and NGO leaders were, “Thank you Prime Minister Harper” and “Thank you Canada” for taking leadership in a way that is changing the world.

So why are leaders in Canadian opposition political parties attacking MNCH? They think that funding abortion should be part of the initiative.

It is counter intuitive to think that enhancing the health of a mother who wishes to have her child is accomplished through that child’s death. It is counter intuitive to think that enhancing the life of a newborn is accomplished through that child’s death.

The focus period of the medical personnel, innovators, governments, financiers, NGOs and women themselves was described as the first 1,000 days of the child’s life – from conception to 2nd birthday; something stated by several speakers. The focus is maternal health, newborn health and child health. The result is an incredible series of networks and coalitions that are working together to save lives.

Accessing the skills and interests of various sectors in nations around the world, a viable commercial model has been developed through alignment around common goals. Governments and NGOs have networks of local delivery mechanisms. Stimulated innovators are providing effective and efficient new ideas for “products.” Private sector corporations are funding production and developing new markets. Nations are establishing the foundation for sound economies.

And, Canadian politicians want abortion services?

In most of the countries where maternal, infant and child mortality is being dramatically reduced because of these efforts abortion is illegal.

Imposing abortion services on this model would result in the departure of governments, corporations and NGOs that are critical to the success of the initiative. An initiative, by the way, that arises out of the world’s agreed upon Millenium Development Goals. None of which included abortion. MNCH is to date the 21st century’s most successful life saving initiative.

Sometimes, no matter how good a nation has become at something you simply don’t export it to the world because, well, it’s simply the right thing to do to keep Canada’s abortion debate at home.

Justin Trudeau inherited a shrunken political party from his immediate predecessors after they effectively shredded the fabric of his father’s Big Red Tent. Pierre Trudeau’s Liberal Party made room for a broad spectrum of opinion. Among many other trail-blazing initiatives, it passed his controversial but widely-popular legislation permitting abortion only when approved by a hospital committee as necessary for the health of the mother.

Devastated by the fall from majority government to third party in the House of Commons in just over a decade of leadership under Paul Martin, Stéphane Dion and Michael Ignatieff, Canada’s “natural governing party” sought to go back to the future in selecting Justin Trudeau as its next leader and hoped-for saviour.

Since becoming leader, Mr. Trudeau has made some questionable comments in public settings, including an expression of admiration for the Communist government of China. He also appears to have frustrated NDP Leader Thomas Mulcair by adopting positions on some issues that steer his party away from the political centre toward the political left. Liberal Party insiders were surprised when Mr. Trudeau jettisoned the Liberal caucus in the Senate. This month they were caught off guard again when he decreed that candidates for the Liberal Party would have to support the same extreme pro-choice (no limits on abortion in Canada) position espoused by Mr. Mulcair’s party.

Whether by accident or design, Mr. Trudeau’s May 7 pro-choice announcement has re-ignited the public debate over abortion to a level unprecedented in recent decades. He continues to fuel the debate by his efforts to clarify and bolster his comments; most recently sending a letter to Liberal Party supporters and establishing an online petition in what looks like a desperate effort to secure his position on the issue based on two myths.

As leader of the Liberal Party, Mr. Trudeau may dictate his party’s platform and policies. But he can’t change the truth.

Many have pointed out to him that the 1988 decision of the Supreme Court of Canada in R. v. Morgentaler did not recognize an unfettered right to abortion. The decision struck down the law put in place by Trudeau the elder on the basis that it resulted in unequal access to the decision-making hospital committees for women based on where they lived in Canada.

In speaking to law school students on this case, I conduct a brief show of hands quiz on whether they have been taught in first year constitutional law that there is a right to abortion and whether they have actually read the Morgentaler 1988 decision for themselves. The majority typically say yes to the former and no to the latter.

I encourage those law students, you, and Mr. Trudeau, to read the decision. It’s available on line. Don’t worry about whether you will understand the legalese. Instead, make three columns on a piece of paper. In the first column write the names of the seven judges who decided the case. In the second column put a check mark beside the name of each judge who decided there is a constitutional right to abortion. In the third column put a check mark beside the name of each judge who decided it is the jurisdiction of Parliament to make a law prohibiting or restricting abortion. You’ll end up with seven check marks in the third column and none in the second (unless you place one beside Justice Wilson based on a disputed statement; and still, you’ll put a check beside her name in column 3). The Supreme Court Justices even offer their opinions on what a constitutionally acceptable abortion law would look like.

Despite getting an earful on the facts of the Morgentaler decision, two weeks after initiating the controversy Mr. Trudeau sent a letter to Liberal Party faithful propagating the myth that section 7 of the Canadian Charter of Rights and Freedoms provides a right to abortion. In addition, he invited people to sign a petition which further propagates this myth he now knows to be false, if he did not know before.

Mr. Trudeau also invokes the name – and Catholic faith – of his father in an effort to sway support. Pierre Trudeau had an interesting journey of faith; one that included earning a reputation as a lover of women, both before and after he married, contrary to the principles of his faith and not quite in the way implied by his son. His abortion law was likewise at odds with his Catholicism, but just as he famously believed that the state had no place in the bedrooms of the nation, his church had little place in the policy-making of his state.

Don’t worry, he told Roman Catholic leaders who feared his Charter might one day be used to strike down the restrictions in his abortion law, if that ever happened Parliament would surely use the notwithstanding clause in the Charter to secure its continuance. He felt it was a reasonable measure to protect both the unborn and the potential for imperilled health of the mother.

The evidence ought to be clear to everyone: The myth of Prime Minister Pierre Trudeau supporting an unfettered right to abortion is … a myth.

Agree or not with his politics, Mr. Trudeau le pere was a leader who opened the Liberal “Big Red Tent” to a multiplicity of ideas and political positions on the issues of the day. Mr. Trudeau le fils seems more bent on following the course set by his immediate predecessors than that of his father. By embracing an extreme, intolerant, and mythologized position on abortion, the path he appears to be on is towards an even smaller Red (Pup?) Tent or a merger with the NDP. This is manifestly not the way to reach the hearts of honest voters.